Kerala High Court
Rajesh T.P vs Vineetha on 21 March, 2013
Author: C.T. Ravikumar
Bench: C.T. Ravikumar
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 22ND DAY OF MARCH 2016/2ND CHAITHRA, 1938
Crl.MC.No. 1173 of 2013
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MC 39/2012 of JUDICIAL MAGISTRATE OF FIRST CLASS-I, PERAMBRA
PETITIONER(S):
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RAJESH T.P , AGED 43 YEARS,
S/O.LATE.RAMAKURUP, K.R.HOUSE, PEROOLI
GOVERNMENT EMPLOYEE, KANNURKARA.P.O, VATAKARA
KOZHIKODE.
BY ADV. SRI.P.M.HABEEB
RESPONDENT(S):
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1. VINEETHA, AGED 36 YEARS
D/O.VIJAYARAGHAVAN, KANDOTHKANDI HOUSE, PERMBRA
KOZHIKODE.-673001
2. GOWTHAM RAJESH,, AGED 10 YEARS
(MINOR), S/O.VINEETHA, REPRESENTED BY MOTHER VINEETHA
KANDOTHKANDI HOUSE, PERAMBRA, KOZHIKODE.-673001
3. STATEOF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV. SRI.SANTHARAM.P
BY PUBLIC PROSECUTOR SRI. BABY THOMAS
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22-03-2016, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
C.T. RAVIKUMAR, J.
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CRL.M.C. No.1173 OF 2013
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Dated this the 21st day of March, 2013
ORDER
The petitioners are accused of violation of provisions under Rule 9(2) of the Abkari Shop Disposal Rules, 2002 (for short 'the Rules') and as such, crime and occurrence report viz., C.R.No.43 of 2011 of Mannarkkad Excise Range was registered against them alleging commission of offence publishable under Section 57(a) of the Abkari Act (for short 'the Act').
2. The first petitioner is admittedly, the licensee of toddy shop No.21 in Mannarkkad Excise Range and the second petitioner is allegedly the salesman therein. The allegation is that the sample of toddy collected from T.S.No.21 on chemical analysis found to contain starch that ultimately led to the registration of CR.No.43 of 2011 against the petitioners. Annexure-A is the report obtained on such chemical analysis. There is no dispute with respect to the fact that in Crl.M.C.1173/13 2 this case the samples were taken in accordance with the procedures contemplated under law. There is also no dispute with respect to the fact that it is the result of the chemical analysis of the first sample showing the presence of starch that led to the accusation of culpability against the petitioners under section 57(a) of the Act. Admittedly, on appearance before the Court of Judicial First Class Magistrate, Mannarkkad, the petitioners/the accused submitted application for sending the second sample to another chemical laboratory for chemical analysis. Annexure-B is the report obtained on such chemical analysis. Indisputably, in this case though Annexure-A report revealed the presence of starch in the first sample sent for analysis, Annexure-B report revealed the contrary. Thus, it is obvious that the two sets of samples taken from the same shop on chemical analysis yielded conflicting reports and that the report on the second sample is in favour of the petitioners.
3. The learned counsel appearing for the petitioners, in view the above factual matters obtained in this case, submitted that Crl.M.C.1173/13 3 Annexure-C final report, is liable to be quashed. Referring to the indisputable position obtained in the light of Annexures- A and B, it is contended that though the result of chemical analysis of the first sample, as is obvious from Annexure-A, revealed the presence of starch, Annexure-C report submitted on chemical analysis of the second sample sent through the court on application by the petitioners/the accused undoubtedly revealed no detection of starch. Relying on the decisions of this Court in Joshi George V. State of Kerala reported in 2011(4) KHC 818 and Rajappan and another V. State of Kerala reported in 2012 (2) KHC 657 the learned counsel for the petitioners contended that when the second sample on chemical analysis show a result contradictory to the result on analysis of first sample the report on the second sample which is in favour to the petitioners has to be relied on and consequently, the proceedings initiated based on the result of the analysis of the first sample are liable to be quashed. Continuation of proceedings in such situation is possible and permissible if only there are materials available to disprove or discredit the result of the analysis of the second sample Crl.M.C.1173/13 4 and if there is a sustainable challenge with regard to the admissibility of the report of the second sample in final report, it is contended.
4. I have heard the learned counsel appearing for the petitioners and the learned Public Prosecutor.
5. There is no dispute with respect to the position of law settled by this Court that when two conflicting reports are available based on analysis of two sets of samples taken from a toddy shop, one in favour of the accused has to be relied on going by the decision in Rajappan's case (supra) rendered relying on the decision in Joshi's case (supra). In view of the decisions of this Court in Joshi's case (supra) and Rajappan's case (supra) if the second report is in favour of the petitioners/the accused and if there is no material in the final report to disprove or discredit the report of the second sample or if there is no challenge against the report of 'B' sample, then the final report is liable to be quashed. In other words, in such circumstances it will be an abuse of process of court to allow continuation of the Crl.M.C.1173/13 5 proceedings against the concerned accused. As already noticed hereinbefore, there is absolutely no dispute with respect to the fact that Annexure-A report revealed the presence of starch. However, Annexure-B report submitted on analysis of 'B' sample yielded totally conflicting report. When that be the indisputable and undisputed position, continuation of the proceedings against the accused persons is permissible only if there is material to disprove or discredit the report of the second sample or if there is a valid challenge against the admissibility of the report of the second sample. As already noticed, in this case final report has been laid and copy of which is produced as Annexure-C. The specific contention of the learned counsel appearing for the petitioners/the accused is that Annexure-C final report does not show the availability of any material to disprove or discredit Annexure-B report of chemical analysis of the second sample and in fact, no challenge was posed against the admissibility of the report of the second sample. The second report is admissible in evidence under Section 293 Cr.P.C. even without examining the Chemical Examiner or the Assistant Chemical Examiner, as the case Crl.M.C.1173/13 6 may be, going by the aforesaid decisions. Availability of any material to disprove or discredit Annexure-B report was not brought to my notice by the prosecution. In other words, the contentions regarding absolute absence of any material to disprove or discredit Annexure-B report made on chemical analysis of the second sample and also absence of challenge against the admissibility of Annexure-B report, raised specifically have not been disputed. When that be the position, I do not find any reason to repel the contentions raised by the learned counsel appearing for the petitioners.
In the result, this Crl.M.C. is allowed. Annexure-C final report laid in CR.No.43 of 2011 of Mannarkkad Excise Range in Palakkad District and all further proceedings pursuant thereto, as against the petitioners, are hereby quashed.
C.T. RAVIKUMAR
(JUDGE)
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C.T. RAVIKUMAR, J.
JUDGMENT
Crl.M.C.1173/13 8
September, 2010
C.T. RAVIKUMAR
(JUDGE)
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C.T. RAVIKUMAR, J.
JUDGMENT
September, 2010
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